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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MIKE GERALD, A/K/A GERALD MIKE, : No. 906 WDA 2014

:

 Appellant :

Appeal from the PCRA Order, April 24, 2014,

in the Court of Common Pleas of Allegheny County

Criminal Division at No. CP-02-CR-0011398-2003

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.* 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 06, 2015

Mike Gerald a/k/a Gerald Mike appeals pro se from the order filed in 

the Court of Common Pleas of Allegheny County which dismissed, without a 

hearing, his second petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Because we agree with the PCRA 

court that appellant’s facially untimely petition failed to establish a statutory 

exception to the one-year jurisdictional time limit for filing a petition under 

the PCRA, we affirm.

Following a coroner’s inquest on August 4, 2003, appellant was 

charged with one count of criminal homicide in connection with the shooting 
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death of John Mitchell on March 15, 1998.1 Mitchell was shot once in the 

chest at close range with a .40 caliber semi-automatic handgun. Appellant 

admitted to police officers that he shot the victim but claimed it was an 

accident.2 On August 24, 2004, a jury convicted appellant of third-degree 

murder.3 On November 11, 2004, the court sentenced appellant to 20 to 

40 years’ imprisonment.4 On December 15, 2004, appellant filed a notice of 

appeal.5 The judgment of sentence was affirmed by this court on August 24, 

2006. On September 22, 2006, appellant, through counsel, filed a petition 

 

1 The facts of this case are set forth in Commonwealth v. Gerald, 

No. 2165 WDA 2004, unpublished memorandum (Pa.Super. filed August 24, 

2006).

2 Appellant claimed another individual, Jermaine Brown, was playing with the 

gun and that he became concerned and asked Brown for the firearm. 

Appellant stated that Brown removed the magazine and handed the gun to 

appellant. Once appellant had possession of the gun, he pulled the slide 

back at which time the gun accidently discharged hitting the victim in the 

chest. Appellant also told the detectives that he fled the house and 

discarded the gun en route to his girlfriend’s house. (Notes of testimony, 

8/19/04 (T.T.) at 277.) At trial, the Commonwealth’s expert criminalist, 

Robert Levine, Ph.D., testified that after a magazine is removed from a gun, 

if a person pulls back on the slide with a cartridge still in the chamber, 

normally the gun would not fire and the live round would be ejected from 

the gun. (T.T. at 220-224.)

3 18 Pa.C.S.A. § 2502(c).

4 Appellant’s trial counsel was Robert Foreman, Esq., of the Office of Public 

Defender.

5 Appellant’s direct appeal counsel was Scott Rudolf, Esq., also of the Office 

of Public Defender.
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for allowance of appeal in the Pennsylvania Supreme Court. On March 6, 

2007, the petition was denied.

On March 5, 2010, appellant, through his PCRA counsel, Scott Coffey, 

Esq., filed his first (amended) PCRA petition.6 (Docket #56.) The postconviction issues raised included: ineffective assistance of trial counsel for 

failing to move to suppress appellant’s confession; ineffective assistance of 

trial counsel for failing to utilize appellant’s girlfriend, Lisa Fields, at trial to 

prove that appellant’s confession was coerced; ineffective assistance of trial 

counsel for failing to request a corpus delicti jury instruction; and 

ineffective assistance of trial counsel for failing to cross-examine Monte 

Nichols regarding his expectation of leniency for testifying against appellant. 

An evidentiary PCRA hearing was held on June 8, 2010. The PCRA court 

dismissed appellant’s PCRA petition on November 16, 2010, based on its 

determination that all claims raised therein were meritless.

On November 22, 2011, the PCRA court appointed Christy Foreman, 

Esq., to represent appellant on appeal. Attorney Foreman filed a timely 

notice of appeal, and raised the same issues Attorney Coffey had raised in 

the PCRA petition. On August 21, 2012, this court affirmed the PCRA court’s 

 

6 Appellant initially requested the court’s permission to represent himself. A 

hearing was held pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 

1998). After the trial court issued a notice of intention to dismiss appellant’s 

pro se PCRA petition, appellant agreed to counseled representation.
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ruling. Commonwealth v. Gerald, No. 1911 WDA 2010, unpublished 

memorandum (Pa.Super. filed August 21, 2012). A petition for allowance of 

appeal was filed, and denied by our supreme court on March 13, 2013.

On February 3, 2014, appellant, pro se, filed his second PCRA petition 

which is at issue here. (Docket #79.) On March 25, 2014, the court issued 

a notice, pursuant to Pa.R.Crim.P. 907, of its intention to dismiss the petition 

without a hearing on the grounds that all issues were time-barred. 

(Docket #80.) Appellant responded and on April 24, 2014, the PCRA court 

dismissed his PCRA petition.

Appellant raises the following issues on appeal:

(A) DID BRIAN WIESMANTLE[] CAUSE A 

MISCARRIAGE OF JUSTICE WHEN HE 

INTENTIONOLLY [SIC] CHOSE TO LIE AND 

FALSIFY EVIDENCE IN ORDER FOR THE GRAND 

JURY TO PURSUE CRIMINOL [SIC] CHARGES.

(1) WAS COURT APPOINTED COUNSEL 

CHRIST [SIC] P. FOREMAN 

ESQUIRE INEFFECTIVE FOR 

FAILING TO DEMONSTRATE 

MEANINGFULL [SIC] PARTICIPATIN 

[SIC] EFFECTIVELY LEAVEING 

[SIC] APPEALANT [SIC] 

UNCOUNSELED ON ISSUES (1-6). 

AND EFFECTIVELY MISLEADING 

APPEALANT [SIC] IN REGAURD 

[SIC] TO HIS NEXT STAGE OF 

APPEAL[?]

(2) WAS MS. FOREMAN ESQUIRE 

INEFFECTIVE FOR FAILING TO 

REFUTE THE EVIDENTIARY 

HEARING TRANSCRIPTS AS 

INACURATE [SIC][?]
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(3) WAS MS. FOREMAN, ESQUIRE 

INEFFECTIVE IN HER FAILURE TO 

ADDRESS PETITIONER[’]S ISSUES 

OF INEFFECTIVE WITH PRIOR 

PCRA COUNSEL SCOTT COFFY 

[SIC], ESQUIRE[?]

(4) WAS MS. FOREMAN, ESQUIRE 

INEFFECTIVE FOR FAILING TO 

ARGUE, LITIGATE OR SUPPORT 

PETITIONER[’]S ISSUES BY THE 

RECORD IN REGAURD [SIC] TO 

WHETHER TRIAL COUNSEL WAS 

INEFFECTIVE FOR FAILING TO 

CROSS EXAMINE MONTEE [SIC] 

NICHOLS REGAURDING [SIC] THE 

SENTENCE AND FINES HE FACED 

LEAVEING [SIC] PETITIONER 

EFFECTIVELY UNCOUNSELED[?]

(5) WAS MS. FOREMAN, ESQUIRE WAS 

[SIC] INEFFECTIVE FOR FAILING 

TO ARGUE, LITIGATE OR SUPPORT 

PETITIONER[’]S ISSUES BY THE 

RECORD IN REGAURD [SIC] TO 

TRIAL COUNSEL FAILING TO 

SUPPRESS INVOLUNTARY 

STATEMENT TO POLICE, FAILING 

TO FILE A HABEAS CORPUS 

PITITION [SIC] AFTER NO CORPUS 

DELECTI INSTRUCTION WAS 

PROVIDED MS[.] FOREMAN 

FAILING TO SHOW HOW 

PETITIONER WAS PREJUDICED BY 

THE ABSENCE OF THE JURY 

INSTRUCTION FOR FAILING TO 

ASSERT TRIAL COUNSEL[’]S 

INEFFECTIVENESS THROUGH THE 

RECORD LEAVEING [SIC] 

PETITIONER EFFECTIVELY 

UNCOUNSELED[?]
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(6) WAS MS. FOREMAN, ESQUIRE 

INEFFECTIVE FOR FAILING TO

ARGUE, LITIGATE OR SUPPORT 

PETITIONER[’]S ISSUE BY THE 

RECORD IN REGAURD [SIC] TO 

DETECTIVE DALE CONOFARI[’]S 

TESTIMONY AT EVIDENTIARY 

HEARING LEAVEING [SIC] 

PETITIONER EFFECTIVELY 

UNCOUSELED [SIC] DUE TO HIS 

FALSIFICATION OF EVIDENCE[?]

(B) DID DR. LEVINE FOR THE PROSECUTION 

CREATE A MISCARRIAGE OF JUSTICE WHEN 

HIS TESTIMONY BLIND SIDED [SIC] THE 

DEFENSE WITH DESCOVERY [SIC] VIOLATION 

TESTIMONY TO PROVE CASATION [SIC][?]

(C) WAS IT TRIAL COURT ERROR PROSECUTOR 

MISCONDUCT INEFFECTIVE ASSISTENCE [SIC] 

OF COUNSEL WHEN THE COMMEN WEALTH 

[SIC] WITH HELD [SIC] THE PRE[-]SENTENCE 

REPORT FROM PETITIONER SENTENCE COURT 

ERROR TO NOT SENTENCE DEFENDANT UNDER 

GUIDELINES AT THE TIME OF THE CRIME.

[D] TRIAL COURT ERROR, INEFFECTIVE COUNSEL 

TO NOT FILE MODIFICATION OF SENTENCE

Appellant’s brief at 2.

All PCRA petitions, including second and subsequent petitions, must be 

filed within one year of when a defendant’s judgment of sentence becomes 

final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes final at the 

conclusion of direct review, including discretionary review in the Supreme 

Court of the United States and the Supreme Court of Pennsylvania, or at the 

expiration of the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). 

The Pennsylvania Supreme Court has held that the PCRA’s time restriction is 
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constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004). 

In addition, our supreme court has instructed that the timeliness of a PCRA 

petition is jurisdictional. If a PCRA petition is untimely, a court lacks 

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118 

(Pa.Super. 2014) (courts do not have jurisdiction over an untimely PCRA); 

Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

In this case, we affirmed the appellant’s judgment of sentence on 

August 24, 2006. Appellant timely petitioned for allowance of appeal which 

was denied on March 6, 2007. United States Supreme Court Rule 13 

provides that “[a] petition for writ of certiorari seeking review of a judgment 

of a lower state court that is subject to discretionary review by the state 

court of last resort is timely when filed with the Clerk within 90 days after 

entry of the order denying discretionary review.” U.S. Sup.Ct. Rule 13; 

28 U.S.C.A. Under this rule, appellant had 90 days (i.e., until June 4, 2007) 

to file a petition for certiorari in the United States Supreme Court with 

respect to the Pennsylvania Supreme Court’s order. Thus, appellant’s 

judgment became final on June 4, 2007. 42 Pa.C.S.A. § 9545(b)(3). See 

also Commonwealth v. Owens, 718 A.2d 330 (Pa.Super. 1998). Under 

42 Pa.C.S.A. § 9545(b)(1), appellant had one year from this date, until 

June 4, 2008, to file his PCRA petition. The instant petition, which the trial 

court dismissed as time-barred, was filed on February 3, 2014, nearly seven 

years after appellant’s judgment of sentence became final.
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There are three narrow exceptions to the one-year time bar: when the 

government has interfered with the defendant’s ability to present the claim, 

when the defendant has recently discovered facts upon which his PCRA claim 

is predicated, or when either the Pennsylvania Supreme Court or the United 

States Supreme Court has recognized a new constitutional right and made 

that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v. 

Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The defendant has the 

burden of pleading and proving the applicability of any exception. 

42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a valid exception 

to the time bar of the PCRA, this court may not review the petition. See

42 Pa.C.S.A. § 9545(b)(1)(i-iii).

Appellant has failed to specifically invoke any valid exception to what 

is a facially untimely PCRA petition. He does not aver or demonstrate that 

his various allegations of error were either caused by the interference by 

government officials, or that it was unknown or not discoverable by him by 

due diligence or that there are any newly recognized constitutional rights 

that must be considered. “If the petition is determined to be untimely, and 

no exception has been pled and proven, the petition must be dismissed 

without a hearing because Pennsylvania courts are without jurisdiction to 

consider the merits of the petition.” Commonwealth v. Perrin, 947 A.2d 

1284, 1285 (Pa.Super. 2008). 
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As appellant’s second PCRA petition is clearly untimely and appellant 

has failed to plead and prove the applicability of any exception to the PCRA’s 

time-of-filing requirements, the PCRA court lacked jurisdiction to consider 

the merits of appellant’s issues and did not err in dismissing appellant’s 

petition without an evidentiary hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2015